Nominet UK Dispute Resolution Service

DRS 04389

The Electoral Commission
v
Domain Administration Limited

Decision of Independent Expert

1.	PARTIES
Complainant:  The Electoral Commission

Country:	UK	

Respondent:	Domain Administration Limited

Country:	New Zealand

2.	DOMAIN NAME
This complaint concerns the domain name electoralcommision.org.uk (the “Domain Name”):

3.	pROCEDURAL BACKGROUND
3.1	A Complaint in respect of the Domain Name under Nominet UK's Dispute Resolution Service Policy (the “Policy”) was received from the Complainant on 22 January 2007.  Nominet forwarded the Complaint to the Respondent. No Response was received. 
3.2	The dispute was referred for a decision by an Independent Expert following payment by the Complainant of the required fee in accordance with paragraph 5d of Nominet's Procedure for the conduct of proceedings under the Dispute Resolution Service Procedure (the “Procedure”) on 28 February 2007. I was appointed as Independent Expert on 7 March 2007 and confirmed to Nominet that I was independent of the parties and I knew of no other facts or circumstances that might call into question my independence in the eyes of the parties.
4.	Outstanding Formal/Procedural Issues (if any)
4.1	Under Paragraph 5a of the Procedure the Respondent was required to submit a Response to the Complaint to Nominet by 14 February 2007. The Respondent has failed to do so.
4.2	Paragraph 15b of the Procedure provides as follows: "If, in the absence of exceptional circumstances, a Party does not comply with any time period laid down in this Policy or Procedure, the Expert will proceed to a Decision on the Complaint".
4.3	It is my view that there are no exceptional circumstances. The proceedings have been communicated by post to the PO Box given by the Respondent as its address (electronic communication appears to have been automatically rejected) and the Respondent has made no attempt to explain its lack of response and there is no evidence to suggest that anything exceptional has occurred.
4.4	The Expert is accordingly authorised under the Procedure to proceed to decide the Complaint. Under paragraph 16a of the Procedure the Expert should reach a decision based on the Parties' submissions (which consists of the Complaint and its Annexes in this case) and the Policy and Procedure. In the absence of any exceptional circumstances the Expert is also entitled to draw such inferences from the Respondent's non-compliance with the Policy or Procedure as he considers appropriate (paragraph 15c of the Procedure).
5.	The Facts
5.1	The filed evidence establishes that the Complainant is a body corporate established by statute in the UK and is charged with various responsibilities relating to the electoral process in the UK, including for example keeping registers of political parties and of election spending. It operates a web site at electoralcommission.org.uk.  It has filed extensive evidence detailing its activities. This evidence establishes that it is a well known body in the UK.
5.2	The Domain Name utilises a misspelling of the Complainant's domain name, omitting one of the two letter "s"s. That is a common misspelling of the Complainant's name.
5.3	The Domain Name is used for a web site which contains links relating to electoral matters. The evidence establishes that this is being maintained as a holding page operated by Sedo, where "click through" advertising revenue can be earned (see the decision in DRS 03021 for more information about this arrangement).  The Domain Name is also shown as being for sale.

6.	The Parties’ Contentions
Complainant

6.1	The Complaint's contention is in substance that the Respondent is using a common misspelling of the Complainant's own domain name, and that users who make a simple spelling mistake will find themselves at the Respondent's site. The Respondent then makes money from such users as at least some of them are likely to follow some of the provided links to other electoral resources.  It says that the Respondent's web site is likely to confuse people into thinking it was operated by the Complainant. It also says the fact that it is for sale indicates it was registered wit a view to selling it to the Complainant for more than the Respondent's out of pocket costs
6.2	The Complainant also provides a detailed analysis of the history of the Domain Name in support of submissions that it was originally registered with false contact details.  
Respondent

6.3	As indicated above no Response has been filed.

7.	discussion and Findings:
	General

7.1	The Complainant is required under Clause 2b of the Policy to prove to the Expert on the balance of probabilities that:
(a)	the Complainant has Rights in respect of a name or mark which is identical or similar to the Domain Name; and

(b)	the Domain Name, in the hands of the Respondent, is an Abusive Registration.

Complainant’s Rights

7.2	“Rights” are defined in the Policy and in the Procedure.  Rights “includes, but is not limited to, rights enforceable under English law.”  The filed evidence established that the name "Electoral Commission" has been widely used and is well known. I am satisfied that the Complainant has Rights in the name "Electoral Commission"
7.3	The Domain Name is in clearly similar to the name in which the Complainant has rights – it is simply a misspelling of the conjoined form of the Complainant's name 
7.4	Accordingly I find that the Complainant does have Rights in respect of a name which is similar to the Domain Name. 

Abusive Registration

7.5	Paragraph 1 of the Policy defines “Abusive Registration” as a Domain Name which either:
(a)	was registered or otherwise acquired in a manner which, at the time when the registration or acquisition took place, took unfair advantage of or was unfairly detrimental to the Complainant’s Rights; or

(b)	has been used in a manner which took unfair advantage of or was unfairly detrimental to the Complainant’s Rights.

7.6	Paragraph 3 of the Policy provides a non-exhaustive list of factors which may be evidence that the Domain Name is an Abusive Registration. These include 
(a)	"circumstances indicating that the Respondent has registered or otherwise acquired the Domain Name primarily for the purposes of selling, renting or otherwise transferring the Domain Name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly associated with acquiring or using the Domain Name" (paragraph 3aiA)"; and

(b)	"circumstances indicating that the Respondent is using the Domain Name in a way which has confused people or businesses into believing that the Domain Name is registered to, operated or authorised by, or otherwise connected with the Complainant (paragraph 3aii)".

7.7	There is no evidence at all to suggest that the Respondent has any association with, or interest in, the word "electoralcommision".  I am satisfied that the web site it operates using the Domain Name, containing as it does a range of links to electoral resources, might confuse people into thinking the web site is in some way connected to the Complainant. I am also prepared to infer that the fact the site is for sale indicates  that the Respondent acquired the Domain Name with the purpose of selling it to the Complainant (I cannot see that anyone else would be interested in buying it) for a price which exceeded the Respondent's documented out-of-pocket costs directly associated with acquiring the Domain Name.
7.8	I accordingly find that there is evidence of an Abusive Registration.  I do not therefore need to decide whether or not false contact details were given when the Domain Name was first registered.

8.	Decision
Accordingly, I find that the Complainant has Rights in respect of a name or mark which is similar to the Domain Name and that the Domain Name in the hands of the Respondent is an Abusive Registration.  I therefore determine that the Domain Name should be transferred to the Complainant.

Nick Gardner

23 March 2007